INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 83 (1), EMPLOYMENT EQUALITY ACTS, 1998 TO 2011
MUSGRAVE LTD T/A MUSGRAVE WHOLESALE PARTNERS
(REPRESENTED BY ARTHUR COX)
- AND -
Chairman: Mr Haugh
Employer Member: Mr Murphy
Worker Member: Mr McCarthy
1. Appeal of Adjudication Officer Decision No. DEC-E2015-112/VM.
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court on the 7th December 2015. A Labour Court hearing took place on the 28th July 2016. The following is the Court's Determination:
Background to the Appeal
This is Mr Zakaria’s (“the Complainant”) appeal from decision of an Equality Officer/Adjudication Officer (DEC-E2015-112) dated 29 October 2015. His notice of appeal was received by the Court on 7 December 2015.
The Complainant lodged two complaints under the Employment Equality Act 1998 (“the Act”) with the Equality Tribunal. His first complaint was received on 18 October 2011 and alleged that he had been discriminated against on grounds of age, gender and race on a number of occasions between October 2007 and 19 April 2011. The most recent event that the Complainant cited in support of this complaint arose from the Respondent’s decision not to accept his application for voluntary redundancy. The Complainant’s second claim was received by the Equality Tribunal on 31 January 2013. On this occasion, the Complainant alleged victimisation and discriminatory dismissal and/or victimisatory dismissal contrary to the Act. The Equality Officer/Adjudication Officer found that the Respondent had not discriminated against the Complainant on any of the grounds as alleged and had not victimised the Complainant within the meaning of the Act. She further found that the Complainant had not been subject to either a discriminatory dismissal or a victimisatory dismissal by the Respondent.
In the course of the appeal hearing before the Court, the Complainant withdrew the age discrimination element of his complaint. He also withdrew the complaints of victimisation and victimisatory dismissal.
Complainant’s Employment History
It is useful at this point to briefly summarise the course of the Complainant’s employment relationship with the Respondent so as to place his complaints under the Act in context. The Complainant (who is a Zimbawean national) was initially employed by the Respondent on 19 March 2002 as a general operative. In April 2005 he was promoted to the position of Administrative Assistant in the Accounts Payable department based at Robinhood Industrial Estate, Clondalkin, Dublin 22. In July 2006 he was again promoted – albeit on a temporary basis - to backfill an Assistant Management Accountant (Cost Analyst) position. This appointment was initially stated to be for 6 months but continued, in fact, for a total of 14 months following which the Complainant reverted to his previous position in October 2007. The Respondent undertook a review of the staffing arrangements in the Accounts Payable department in or around March 2011 and determined that the department was overstaffed. It determined to reduce the number of positions in the department by 5 and invited voluntary applications for redundancy while agreeing with the Trade Union that if there were to be compulsory redundancies these would be effected on a last-in first-out (LIFO) basis. The number of applications for voluntary redundancy exceeded the number of positions that the Respondent had determined to make redundant on that occasion. The Respondent, therefore, undertook a matrix-based selection process to determine which of the 8 applications for redundancy would be accepted. The Complainant scored very highly in the process and his application was, therefore, not accepted. The decision in this regard was communicated to him on 19 April 2011. The Complainant was unhappy with the outcome and believed that he should have been selected for redundancy. In particular, the Complainant took issue with the fact that a named Irish female colleague (MW) was selected for redundancy. He raised a formal grievance in respect of this and other historical matters on 10 August 2011. None of the complaints were upheld.
On 28 June 2012 the Complainant went into his manager’s office and told her that he was unable to concentrate and was going home. Although the manager (Ms FN) invited him to sit down and discuss whatever issues he had, he decided to leave the workplace. The Complainant subsequently wrote to the Respondent and demanded his P45 alleging he had been dismissed by his line manager on 28 June 2012. Nevertheless, he returned to work on 3 July 2012 and demanded to be treated as if he had been on authorised sick leave. The Respondent unsuccessfully attempted to initiate a disciplinary investigation into the Complainant’s unauthorised absence from work on 28 and 29 June. The Complainant replied by letter dated 5 July 2012 and stated that he would not participate in any such investigation meeting. A considerable volume of correspondence was exchanged between the Complainant and the Respondent’s Senior Financial Accountant (Mr VD) in relation to the former’s unauthorised absence in which the Respondent repeatedly reassured the Complainant that he had not been dismissed on 28 June 2012. For his part, the Complainant continued to refuse to participate in any investigation of the events of that date and of his subsequent absence. Mr VD, nevertheless, did carry out an investigation and issued his report on 20 August 2012 with a recommendation that matters be progressed to the disciplinary stage.
On 20 August 2012 the Complainant returned to work. However, just before lunch on that date he reported that he felt unwell and needed to see a doctor. Later that afternoon he presented with a medical certificate indicating he was unfit to work from 20 August until 3 September due to “work stress and viral infection”. By letter dated 27 August, the Complainant was invited to attend the Respondent’s occupational health advisor, Medmark, on 31 August 2012 for an assessment. The Complainant provided another medical certificate covering the period from 3 September to 12 September 2012. This transpired to be the final certificate that the Complaint submitted to the Respondent although he did telephone the Respondent on 13 September to advise that he had been certified for a further period until 27 September 2012.
Dr More O’Ferrall of Medmark issued her report to the Respondent on 11 September 2012 in which she stated that the Complainant, in her opinion, was medically fit to return to work and medically fit to participate in any meetings the Respondent wished to arrange with him to discuss his ongoing work-related issues. The Respondent communicated these findings to the Complainant by letter dated 25 September 2012 and stated that it expected him to return to work on 1 October 2012. The Complainant did not return to work on that or any subsequent date. The Respondent wrote to him again on 4 October and put him on notice that his continued absence was uncertified and therefore unauthorised and that if he did not return to work on Thursday 11 October he would be deemed to have abandoned his post. As the Complainant did not return on the 11th, the Respondent wrote again on 12 October 2012 confirming that it regarded the Complainant as having abandoned his employment position and enclosing a P45. The P45 stated his date of cessation as 22 November 2012. This took account of 6 weeks’ statutory notice period for which the Complainant was paid.
Specifics of Complaints of Discrimination on the Race and Gender Grounds
The Complainant submitted to the Court that a series of events occurred in his workplace between October 2007 and 19 April 2011, each of which resulted in his being treated in a discriminatory manner by his employer, the Respondent, having regard to his gender and/or his race. The events in question were the subject of the Complainant’s first complaint to the Equality Tribunal, referred to earlier, and received by the Equality Tribunal on 18 October 2011. The Complainant further submitted that the relevant events of 2007 to 2011 comprised a continuum of discriminatory events that ought to be deemed to have been referred within time for the purposes of the Act.
The principal events referred to by the Complainant as forming this alleged continuum can be listed in reverse chronological order as follows:
- •the Respondent’s decision, communicated in writing on 19 April 2011, not to accept the Complainant’s application for voluntary redundancy;
•the Respondent’s refusal on 17 September 2009 to allow the Complainant avail himself of a flexi-time allocation he believed he had accrued while performing additional duties in place of a colleague while the latter was on annual leave;
•the Respondent’s failure to provide him with a particular form of work experience (relevant to an external course of study he was pursuing) following his written request on 27 July 2009 to be permitted to undertake such work experience;
•the Respondent’s failure to provide him with a reward in the form of cash for a money-saving suggestion he had come up with in October 2008;
•the Respondent’s decision not to offer the Complainant the opportunity to gain additional experience or training which he could have availed himself of in June 2008 had he – rather than a named female colleague - been selected to cover the work of a third colleague;
•the Respondent’s decision in October 2007 to appoint somebody else to take up the position of an Assistant Management Accountant (Cost Analyst) which the Complainant had back-filled on a temporary basis for some 14 months. (The Complainant characterised this as a decision to demote him.)
The onus of proof rests, in this regard, on the Complainant. Pursuant to section 85A(1)of the Act, he is required to make out aprima faciecase of discrimination. If such a case is made out, and only then, does the onus shift to the Respondent to prove that there is no infringement of the principle of equal treatment. In support of his claim that he was treated in a discriminatory fashion during the course of the redundancy selection process conducted by the Respondent in April 2011, the Complainant submits that the Respondent applied two different selection methods to the pool of employees concerned. He suggests that the Respondent applied LIFO to a number of the applicants for voluntary redundancy and the skills matrix to the remainder, including himself. As a result, he claims, he was treated less favourably than his comparators who – he alleges – had been selected on the LIFO basis. Had LIFO been applied consistently and to each of the volunteer applicants, the Complainant says he would have been selected. The Respondent, on the other hand, submits that LIFO was not applied at all and that the selection process was determined entirely on the basis of the scores generated by the application of the matrix. The Respondent also disputes the Complainant’s assertion that he would have been selected had LIFO been applied to him.
The Court has carefully considered both parties’ written submissions and oral evidence in relation to the process by which the Respondent in fact selected five employees for redundancy from a pool of eight volunteers. A redacted copy of those scores and the relevant criteria which formed the matrix was opened to the Court by the Respondent. The Court is satisfied that the Respondent’s selection from amongst the volunteers for redundancy was made entirely on the basis of the scores generated by the application of the selection matrix to each of the eight applicants for voluntary redundancy. The Court is also satisfied that LIFO was not a factor in the process and would only have been relevant in circumstances where the number of volunteer applicants for redundancy was lower than the desired number of redundancies and where, as a consequence, the Respondent would have been compelled to make compulsory redundancies.
The Complainant achieved a very high score when the matrix was applied to him. This is accounted for in very large measure by the marks he achieved for his numerical, financial and computer related skills, in particular. He scored significantly higher than any other candidate in these areas taken together. When the results of the entire matrix are considered, the Complainant achieved the second highest total score and was only two points behind the person who scored the highest overall score. It is clearly the case that the Respondent valued the Complainant’s skill-set and wished to retain him for that reason.
The Court finds in all the circumstances that the Complainant has failed to make out aprima faciecase of less favourable treatment (on either the gender or race ground) arising from the voluntary redundancy selection process undertaken by the Respondent in April 2011. It follows that the Court is not required to consider whether the complaints raised by the Complainant in relation to events prior to April 2011 as they are manifestly outside the six-month time limit for bringing complaints permitted by the Act and the Complainant made no case that the time limit should be extended in his case.
Complaint of Discriminatory Dismissal
The Complainant submits that he was dismissed in a racially discriminatory manner because, he alleges, the Respondent failed to follow its own stated disciplinary procedures before arriving at the decision to terminate his employment, a course it would not have taken had he been a white, Irish employee. The Respondent submits that, in fact, the Complainant frustrated his contract of employment by failing to engage with the Respondent in relation to his ongoing unauthorised absence from work (particularly post 1 October 2012) and his failure to comply with the Respondent’s sick leave policy. The Respondent further submits that it did not in fact initiate a disciplinary process in relation to the aforementioned issues at all in circumstances where the Complainant had previously and persistently refused to engage in an investigation into his unauthorised absence from work on 28 and 29 June 2012.
The key events that occurred between 20 August 2012 and the cessation of the Complainant’s employment with the Respondent on 12 October 2012 have been recited in some detail earlier in this determination. The Court is of the view that the Respondent was left with no option in October 2012 but to regard the Complainant as having abandoned his employment in circumstances where: the Respondent’s specialist occupational health advisor had informed the Respondent in writing on 11 September 2012 that in her opinion the Complainant was medically fit to resume work and to engage with the Respondent; the Respondent in turn had written to the Complainant and advised him that they expected him to return to work at the latest by 1 October 2012, his most recent medical certificate submitted to the Respondent having expired on 12 September 2012; and the Respondent had written again to the Complainant and put him on notice of the consequences of his continued unauthorised absence. No evidence was put before the Court by the Complainant from which it could draw an inference that he was treated less favourably in these circumstances than any other employee, regardless of his or her race, has been, is being or would be treated by the Respondent. This aspect of his complaint also fails.
Conclusion and Determination
The Complainant has failed to make out aprima faciecase in support of any of the complaints that he has advanced as part of this appeal. The appeal, therefore, fails in full and the decision of the Equality Officer/Adjudication Officer stands.
The Court so determines.
Signed on behalf of the Labour Court
17 August 2016Deputy Chairman
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.